JOHNSTON & PRITCHARD
[2014] FCCA 1996
•23 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOHNSTON & PRITCHARD | [2014] FCCA 1996 |
| Catchwords: FAMILY LAW – Parenting – previous hearing and subsequent application for variation – has there been a significant or substantial change in circumstances – consideration of the law – application to the evidence – application for variation of parenting orders dismissed – continuation of operation of previous orders precluding viewing of subpoenaed documents – preclusion of further proceedings without leave of court – costs. |
| Legislation: Family Law Reform Act 1995 (Cth) |
| Johnston & Pritchard [2013] FCCA 2418 Poisat & Poisat [2014] FamCAFC 128 Miller & Harrington (2008) FLC 93-383 Lowe v Lowe (Unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990) SPS & PLS [2008] FamCAFC 16 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 Errington & Samuels & Ors [2011] FamCA 98 Reid & Lynch [2010] FamCAFC 184 CDJ v VAJ (1998) 197 CLR 172 at 118 Freeman & Freeman (1987) FLC 91-857 McManus v McManus [1969] 13 FLR 449 at 455 Marsden v Winch (2009) 42 Fam LR 1 Langham and Langham (1981) FLC 91-014 Bennett and Bennett (1991) FLC 92-191 In the Marriage of McEnearney (1980) FLC 90-866 In the Marriage of F & N (1987) 11 Fam LR 664 In the Marriage of D & Y (1995) 18 Fam LR 662 In the Marriage of Newling & Mole (1987) 11 Fam LR 974 at 976-7 In the Marriage of Zabaneh (1986) 11 Fam LR 167 at 172 |
| Applicant: | MS JOHNSTON |
| Respondent: | MR PRITCHARD |
| File Number: | SYC 4591 of 2008 |
| Judgment of: | Judge Coker |
| Hearing date: | 18 July 2014 |
| Date of Last Submission: | 18 July 2014 |
| Delivered at: | Townsville |
| Delivered on: | 23 July 2014 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Ladopoulos |
| Solicitors for the Respondent: | Paltos Briggs Family Lawyers |
ORDERS
That the Mother’s Initiating Application filed 31 January 2014 be dismissed.
That the Mother be restrained from initiating further proceedings in relation to the parenting of the child, X born (omitted) 2006, without leave of this Court previously given.
That the Mother pay the Father’s costs of and incidental to these proceedings as may be agreed between the parties and, failing agreement, as follows:
(a)Within 28 days of there being an indication that agreement cannot be reached that submissions on the quantum of costs be filed by the Father and served on the Mother;
(b)The Mother file and serve submissions in response within 14 days thereafter; and
(c)The matter of costs be determined in Chambers.
IT IS NOTED that publication of this judgment under the pseudonym Johnston & Pritchard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT TOWNSVILLE |
SYC 4591 of 2008
| MS JOHNSTON |
Applicant
And
| MR PRITCHARD |
Respondent
REASONS FOR JUDGMENT
On 12 October 2011, Federal Magistrate Walker, as she then was, handed down reasons and orders in relation to the future parenting of the child, X. X was born on (omitted) 2006 and therefore at the time those orders were handed down, he was a little over five years of age. Time has passed and he is now a little over eight years of age but unfortunately, the circumstances with regard to his parenting still remain, at least to some degree, disputed between the parents.
The orders that were made on 12 October 2011 were quite comprehensive. They can, however be summarised as follows:
·That the parents have equal shared parental responsibility for decisions to be made in relation to X, except that in circumstances where following consultation with one another about treatment recommended for X by any medical specialist, and an inability to agree about the recommended treatment, the final decision is to vest in the father, and the father is to be solely responsible for arranging for X to attend consultations with any counsellor, therapist, psychologist or medical professional for the purposes of providing counselling or therapy for the child;
·X is to live with his father; and
·X is to spend time with his mother during school term in a two week cycle for one week from after school Friday to before school Monday, and in week two from after school Monday to before school Tuesday, and the orders are suspended during the school holidays, and there is provision for the parents to have one half of the school holidays in odd and even years;
·Special days are specifically included in the orders to ensure that X is able to spend time with each parent on days such as Mother’s Day, Father’s Day, Christmas Day, if in the same locality, as well as birthdays and the like;
·The orders then go on to detail arrangements with regard to handovers and provision of information between the parties, as well as various restraints and directions with regard to the parents’ dealings with each other.
The orders made on 12 October 2011 followed a lengthy hearing conducted by Federal Magistrate Walker, as she then was, noting as it does in the reasons for judgment, that the hearing dates were 24 and 25 February 2011, 3 and 4 May 2011, 16 June 2011, and final submissions were made on 11 August 2011. It would appear that some five or six days were devoted to the taking of evidence and determination in relation to the matter and her Honour’s reasons in relation to the proceedings, stretch to 194 paragraphs.
In particular, as I have noted, the orders provided for X to live with the father. The mother has made two applications subsequent to the orders being made in October of 2011 with regard to variation. The first of those applications was filed by the mother on 11 December 2012, seeking orders in relation to what could best be described as a variation of the arrangements with regard to the parenting of X.
That matter came before Judge Altobelli on 13 February 2013 and Judge Altobelli, following a consideration of the application, determined that it was appropriate that the mother’s application, seeking interim and final orders in relation to parenting, be summarily dismissed. Additionally, His Honour ordered that the mother be restrained from inspecting any documents produced to the court in response to any subpoenas issued by the mother, on or after 11 December 2012.
His Honour specifically noted that that restraint, related to various subpoenas directed to Dr F of the Black Dog Institute, Relationships Australia, the Department of Human Services, (omitted) Hospital and (omitted) Hospital, but as I have indicated, the orders also specifically related to the mother being restrained from inspecting documents produced by subpoena issued by her after 11 December 2012 and specifically noted that the list of those documents produced by subpoena, was not limited only to those documents.
I specifically refer to that aspect of the matter due to one of the issues that arose in submissions made, with regard to the second application.
Additionally, his Honour made orders with regard to a restraint specifically being placed upon the mother in relation to publishing information with regard to these proceedings, or derogatory statements concerning the father or his partner, as well as specifically restraining both parties from speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion, in the presence or hearing of the child and further, from discussing the proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting others to do so.
That application filed by the mother on 11 December 2012 and dismissed on 13 February 2013, was followed less than a year later by another application, which is the proceedings before me. In her initiating application, filed on 31 January 2014, the mother sought orders on both an interim and final basis in these terms:
(1)The orders imposed on 12 October 2011 be discharged.
(2)X live with his Mother (Applicant) and spend time with the Father during school term every second weekend from 3pm Friday afternoon until 9am Monday morning and on the alternate week spend Monday from 9am until Wednesday 9am. X spend half of the school holidays with his Mother and the other half with his Father as per the orders dated 12 October 2011.
Additionally, the orders then go on to provide specifically that section 4, 13 and 14 of the orders of 12 October 2011 remain. Those particular orders relate to the more general terms to which I referred earlier, including a restraint in relation to the parents’ changing the child’s enrolment at the (omitted) School, a requirement that each parent provide the other with information as to their current residential address, mobile and landline telephone numbers and, in particular, the inclusion of the special days, which were ordered by Federal Magistrate Walker.
Additionally, the mother then proposes that there should be orders with regard to the parents’ having joint parenting responsibility and, interestingly, an order sought that the father stop defaming the mother. Furthermore, it was proposed that the father attend mediation with the mother to discuss parenting issues when they arise, and that the father be restrained from taking X out of Australia.
The interim orders were reflective of most of those particular matters, though in relation to the inclusion of various orders with regard to special days and the like, they were not included on the interim orders. Quite simply, the mother seeks a further determination in relation to the issues with regard to the parenting of this little boy.
The response filed by the father in relation to the matter is included in the response to initiating application filed on 2 April 2014. There, the father seeks orders in identical terms on both a final and interim basis. The orders are in these terms:
·That the Mother’s Initiating Application filed 31 January 2014 seeking final orders in relation to parenting be dismissed - or, of course, in relation to the interim application – seeking interim and final orders in relation to parenting be summarily dismissed.
·Additionally, orders are sought that the mother be restrained from initiating further proceedings in relation to the parenting of X, born (omitted) 2006, presently aged 7 years, without leave of the Court; and
·In relation to both applications, interim and final, costs incurred by the father are sought in relation to the proceedings.
The matter came before the court on 7 April 2014 and at that time, directions were made with regard to the matter being ready for hearing, and further steps were taken with regard to the matter being listed before me. In the end, the matter has proceeded upon the basis, as directed, that the preliminary or threshold consideration of whether there has been a substantial change in circumstances was dealt with as a separate issue.
Before turning to the evidence relied upon in relation to this matter, I consider it appropriate that I should specifically note the law in relation to matters with regard to re-opening or re-consideration of proceedings that have come before a court previously and have been the subject of orders either obtained by consent or following, as is the case here, a trial and determination.
Judge Altobelli in his decision handed down on 13 February 2013, provided a lengthy dissertation on the law. From paragraph 4 of his reasons through to page 16 of the reasons, at the conclusion of paragraph 6, he details the development of the law in relation to the matter and the various issues that need to be considered by a court in relation to such matters. I would accept the learned statement made by Judge Altobelli in that regard and simply include in these reasons, the statements made by his Honour as referred to.
4. The application before me was, in effect, what is called a Rice & Asplund application [(1978) 6 Fam LR 570]. Ms Johnston was representing herself. The nature of the proceedings and the issues was outlined to her by me earlier today. She had made submissions on her own behalf. Mr Paltos appeared for the father and made submissions on his behalf. The applicable law in these applications is discussed in a number of cases. For example Mr Paltos referred me to a decision of His Honour Justice Benjamin in Errington & Samuels & Ors [2011] FamCA 98, where, from paragraphs 19 onwards of the decision His Honour discusses the relevant legal principles.
5. Other cases that do the same thing include the Full Court’s decision in Reid & Lynch [2010] FAMCAFC 184, and in this regard there are a number of relevant paragraphs:
[19] As O'Ryan J explains in his reasons for judgment, the grounds of appeal pursued before us on behalf of the Mother can be divided into the following two broad categories: first, what is described as "Rice & Asplund matters and Res Judicata" together with an issue about the adequacy of reasons; and secondly, procedural fairness issues.
[20] In relation to the first of those categories, and again as O'Ryan J explains, s 65D(2) of the Family Law Act 1975 (Cth) ("the Act") empowers a court to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order, but in exercising such a power the best interests of the child in question are the paramount consideration (as was recognised by Neville FM in para 33 of his reasons).
[21] However, as O'Ryan J also explains by reference to the various authorities which he cites, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment, unless the court can be satisfied that there is some changed circumstance which would justify such a serious step, or some fact which was not previously disclosed which would have been material in the making of the orders.
[22] I would also in this context refer to the observations of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 118 (albeit made in the context of the admission of further evidence on appeals in parenting cases) that the "important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings."
…
[233] It is therefore clear that in exercising the power in s 65D(2) of the Act a court must regard the best interests of the child as the paramount consideration. However, the issue that arises is whether there is any limitation on the circumstances in which the power in s 65D(2) may be exercised. As was pointed out by Dickey in Family Law at p 285, "there are no statutory conditions which must be satisfied before a court may vary a parenting order".
[234] Although res judicata does not apply to a final parenting judgment, and there are no statutory conditions which must be satisfied before a court exercises the power in s 65D(2) of the Act, there are sound reasons why there should be some restraint on the exercise of the power. For example, in Freeman and Freeman (1987) FLC 91-857 Strauss J said at 76,470–71:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. For these and like reasons the court may, in an appropriate case, scrutinise with some care an application such as the one in question here when a party applies for what is, in effect, the reversal of an order made a short time previously. The court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing: The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should be not overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children. (citations omitted)
All of the matters that Strauss J discussed are within the rubric of the best interests of a child.
[235] Prior to 1976, in proceedings under the repealed Matrimonial Causes Act 1959 (Cth), there was authority that to discharge, vary, suspend or revive a final parenting judgment, there had to be the "most substantial grounds" and "[a] reversal of [a] decree would require the discharge of a particularly heavy onus": McManus v McManus [1969] 13 FLR 449 at 455 per New South Wales court of Appeal. However, since 1976 a less stringent requirement has been adopted.
[236] In Rice and Asplund the leading judgment was given by Evatt CJ, with whom Pawley SJ and Fogarty J expressed their agreement. Having discussed certain authorities, including McManus, Evatt CJ said at 78,905–6:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material … These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of s 64 and weigh up the factors for and against the proposals for each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.(citations omitted)
[237] The principles espoused in Rice and Asplund have been considered and applied in numerous first instance and Full court decisions including since amendments to the Act were introduced by the Family Law Reform Act 1995 (Cth) and the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth): see Marsden v Winch.
[238] In summary, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material: see also Langham and Langham at 76,179.
[239] I observe that in Marsden v Winch, the Full court at [18] agreed with the observation of Warnick J in SPS and PLS that the application of the rule in Rice and Asplund is closely connected with the nature and degree of change sought to the earlier order. In SPS and PLS Warnick J said at 82,455 that "[t]he rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes".
…
[257] I have considered very carefully all of the evidence that was before the Federal Magistrate and accept the submissions made on behalf of the Mother. When consideration is given to the evidence before his Honour he made a number of errors.
[258] Importantly, in my view, the Federal Magistrate failed to consider in any way what was said in Rice and Asplund and carried out what, in effect, was a review of his final judgment of 30 July 2009. His Honour approached the matter on the basis of considering whether or not his orders of 30 July 2009 should have been made given a number of matters which included whether the orders reflected what is set out in the legislation including the first primary consideration in s 60CC(2) of the Act; whether, in all the circumstances, the orders of 30 July 2009 were in the best interests of the child X. His Honour dealt with the matter on the basis of considering if his judgment was in accordance with the requirements of the legislation and decided that it was not.
[259] In my view, it is clear from the various authorities, that this is not the nature of the enquiry if a Rice and Asplund argument is being considered. As the Full court observed in Langham and Langham at 76,179: "Such a testing of the previous order upon the unchanged evidence would be in the nature of an appeal and could only be instituted as such".
[260] The rule in Rice and Asplund is not an "absolute rule" and a previous order may also be varied if some factor was not disclosed at the previous hearing: see Langham and Langham. In this case, the only undisclosed matter contended for by Mr Lynch was his lack of awareness of the March 2009 family report. I understand that Mr Lynch was contending that if he had been aware of this family report he would not have agreed to the judgment of July 2009. The difficulty with this contention is, as submitted on behalf of the Mother, that it was an unverified assertion by Mr Lynch and as well the Mother was not given the opportunity to challenge the assertion.
…
6.The Full Court’s decision in SPS & PLS [2008] FamCAFC 16 is as follows:
[1] The “rule” in In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 ; (1979) FLC 90-725 (Rice & Asplund) — (at least, in one of its shorter formulations) that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance — is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing. Both these qualifications to the “rule” arise for consideration in this appeal.
[2] The orders challenged are those of Lucev FM, dismissing an application by Mr SPS that he and Ms PLS share equally the care of their children, B, then around 13 years of age and S, then around 10 years of age: SPS v PLS [2007] FMCAfam 907. The father had further sought that if equal care was not ordered, his time with the children at least be increased.
[3] In 2003, after a contested hearing, Brown FM had ordered that the children live with the mother in the Darwin area and that the father spend time with the children 4 days a fortnight and half of the school holidays.
[4] There are three grounds in the father’s appeal. The first relates to the federal magistrate’s application of the rule in Rice & Asplund. The second relates to a failure by the learned magistrate to admit into evidence a court-ordered family report and an allegedly consequent failure to give any weight to the wishes of the children and the recommendation of the family reporter. The final ground asserts a failure to accord the father natural justice, both in respect of the refusal to admit the family report and an asserted failure to sufficiently explain to the father, who was not legally represented at trial, the Rice & Asplund “rule”.
[5] The actual grounds are unusually cast and do not squarely raise all points argued, but Mr Lawrence, counsel for the mother, took no exception on that basis.
[6] Because arguments about the application of, as distinct from the content of, the rule in Rice & Asplund are necessarily connected with both the evidence as it was before the learned magistrate and any evidence that should have been before the learned magistrate, before discussing the rule and its application by Lucev FM, I will discuss first the matter of the family report, then some of the facts upon which the learned magistrate founded his application of the Rice & Asplund rule and other facts, mainly contained in the family report, upon which the federal magistrate could have founded his application of that rule.
…
[45] Discussion of the rule has not always used consistent terminology. In particular the term “threshold” has sometimes been used in a temporal sense, to indicate something done at the beginning of a hearing as opposed to at the end and, at other times, the term has been applied to consideration of the rule (irrespective of when in a trial that was given) ahead of consideration of (or as the initial application of) other relevant or potentially relevant principles.
[46] I will use the term “threshold” to mean “the first question to be determined” and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered. I will refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a “preliminary matter”.
[47] The rule is long established — nearly 30 years now in this jurisdiction — and was alive well before that in similar jurisdictions, and so, one might think, is in little need of discussion. But sometimes familiarity and repetitive usage may abrade the subtleties of a principle or expose those not originally appreciated.
[48] In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation, the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) “Shorthand” statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Pt VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
[49] I support these observations as follows.
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention
[50] Rice & Asplund involved an appeal from custody orders which reversed an order made 9 months beforehand. In her reasons for judgment, Evatt CJ said of the position of a court confronted with an application to change an earlier order that (at Fam LR 572; FLC 78,905):
… It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
[51] In the remainder of the paragraph immediately following this passage, Evatt CJ said that the threshold question is not necessarily one for a preliminary determination. Yet in my view, her Honour had formulated the rule as one to be applied as a preliminary matter. As seen, she said that the court should not lightly entertain an application to reverse an earlier custody order.
[52] In Bennett the Full Court, comprising Nicholson CJ, Simpson and Finn JJ, seems also to have thought that the rule in Rice & Asplund was primarily one that would be applied as a preliminary matter. That court expressed the view that while it was a matter of discretion as to whether a judge embarked upon a full hearing of a matter or determined the threshold question as to a change in circumstances, that in no way derogated from the general principle expressed in Rice & Asplund “that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances” (emphasis added).
[53] The original formulation does not well describe the position of a court effectively considering what weight to give to a previous order at the end of a full hearing of an application to alter that order. Then, as a matter of terminology alone, the rule would be at least directed to the question not of whether to entertain an application, but whether to reverse (or alter) an earlier order.
[54] This difference may seem unimportant, but it is not.
[55] The ends served by the rule will vary according to whether it is applied at the outset of, or at the end of, a hearing.
[56] As seen above, in Rice & Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
[57] In In the Marriage of McEnearney (1980) FLC 90-866 (McEnearney), Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child. [Emphasis added]
[58] Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
[59] If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.
[60] If the rule is not applied until the end of a full hearing, they cannot; the parties will have litigated in a full hearing; likely that very situation will have impacted on the children, who, however, may have been more directly involved, for example, in interviews for a report; public resources will have been expended.
[61] In my view, a likely and important consequence of a diminution in the ends to be served by a rule is a diminution in the weight it should carry, among the other principles pertinent to an overall result. This observation is reinforced by consideration of the nature of the hearing that takes place if the rule is not applied as a preliminary matter.
[62] As mentioned earlier, in Rice & Asplund, Evatt CJ said that the threshold question is not necessarily one for application as a preliminary matter. Her Honour added (at Fam LR 572; FLC 78,905–6):
… but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served …
[63] I think this passage raises two awkward concepts. As already stated, at the end of the hearing, a judge will not be enquiring whether there are “circumstances which require the court to consider afresh how the welfare of the children should best be served”. That enquiry will have already been conducted.
[64] Second, in strict logic, if a judge is unable to determine on the papers if a change of circumstances sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to “how the welfare of the children should best be served”.
[65] However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of a “custody” dispute.
[66] In In the Marriage of F & N (1987) 11 Fam LR 664 ; (1987) FLC 91-813 (F & N) Nygh J, with whom Evatt CJ and Burton J agreed, said (at Fam LR 666; FLC 76,137):
Rice & Asplund in fact makes the point that this court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.
Generally speaking, a court should as a matter of practice not assume such jurisdiction unless there is a change of circumstances that has occurred since the last determination. As I have pointed out earlier in this case, such a change of circumstances had in fact occurred. Rice & Asplund, in my view, also makes it clear that once the Court assumes jurisdiction the normal rules applicable to custodial decisions apply. That is to say, the earlier decision does not assume any particular onus upon the person who seeks a change from the existing situation to show that this is or is not justified. The Court must consider the matter afresh in the light of what it considers to be in the best interest of the child.
[67] In Bennett, the trial judge had embarked upon a fulsome hearing of a custody issue and the Full Court expressed no disapproval of that course.
[68] In In the Marriage of D & Y (1995) 18 Fam LR 662 ; (1995) FLC 92-581 (D & Y) the Full Court, referring to Bennett’s case, clearly regarded the choice for a court, where departure from a previous order was sought, as between determination of the threshold question as a preliminary matter or a “full hearing of a custody dispute”.
[69] Though I refer to a “leap in logic” there may be good reason for it. In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify fresh consideration of parenting arrangements are likely to be identical or at least intertwined, and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice & Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
[70] But the concern is that to proceed in the circumstances under discussion to a “full hearing of a custody dispute” may cause the threshold question to fade completely away. This observation may explain what the Full Court said in Bennett (at Fam LR 409; FLC 78,262–3):
In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion on the basis that no change in circumstances have been shown.
… it seems to be almost impossible to argue that if a trial Judge has concluded that, in the interests of a child, there should be a change in custody, such a decision should be set aside upon the basis that there has been no sufficient change of circumstances …
[71] This statement seems equivalent to saying that the rule in Rice & Asplund need not be applied.
[72] I would put the position a little differently. While I have said that the rule needs to be reformulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice & Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
[73] There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Second, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
[74] In summary:
• the rule in Rice & Asplund is generally expressed as a rule to be applied as a preliminary matter;
• if applied as a preliminary matter it may achieve all its purposes; and
• if applied at the end of a full hearing of parenting issues, the rule cannot achieve all its ends, but can achieve some and ought still receive consideration. However, its force may be diminished.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with on the merits
[75] As seen from the passage from Bennett earlier quoted, the court there said (at Fam LR 409; FLC 78,262):
In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter.
[76] This implies that had the threshold question been answered at a preliminary stage and the application dismissed, it would not have been dealt with “on the merits”. I think that implication should be avoided.
[77] An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA, which are:
60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
[78] Authority supports this view. Speaking of the rule in Rice & Asplund, Nygh J, with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling & Mole (1987) 11 Fam LR 974 at 976–7 ; (1987) FLC 91-856 at 76,467:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the court …
[79] Again, in F & N, Nygh J said (at Fam LR 666; FLC 76,136):
Indeed it is fair to say, as I have said on several occasions, that basically in custodial matters there is only one rule, and that is that the welfare of the child is the paramount consideration. Everything else is but a reflection of that rule.
[80] And in McEnearney, Nygh J further said (at 75,499):
One comes back to the fundamental principle that the interests of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court [too] soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.
[81] Thus, in my view, when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(v) The application of the rule is closely connected with the nature of and degree of, change sought to the earlier order.
[82] This proposition lay behind what Evatt CJ said in In the Marriage of Zabaneh (1986) 11 Fam LR 167 at 172 ; (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.
[83] Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
Additionally, however, I note in particular the recent decision of the Full Court of the Family Court in Poisat & Poisat [2014] FamCAFC 128, where specific consideration was given to issues with regard to what is referred to as “the rule in Rice and Asplund”. There, their Honours were required to deal with an appeal in relation to a concern with regard to whether the judge in first instance, Rees J, had made a determination in accordance with the law.
Their Honours specifically turned their mind to whether there was actually a rule or principle as described as “the rule in Rice and Asplund”, and found specifically that there is such a principle as the rule in Rice and Asplund. More particularly, however, their Honours went on to comment upon her Honour’s reasons for judgment and noted in relation to the reasons for judgment, a quite lengthy examination of the process to be followed, in relation to applying the rule in Rice and Asplund.
There, their Honours specifically noted that in the judge’s reasons she set out the following at paragraph 37:
37.As is clear from the authorities, the decision to dismiss a parenting application is a decision based on the children’s best interests. In making this decision, I have placed particular weight on the interests of the children not being involved in further litigation...
And later, her Honour goes on to note:
…I find that those matters –
noting particularly the weight to be placed on the need for there not to be further litigation –
outweigh any benefit to the children of allowing the litigation to continue.
Additionally, their Honours then went on specifically to note the process and, in particular, to recognise that there were two bases upon which the Court could apply the rule in Rice and Asplund. At paragraph 39 of the decision, their Honours said:
As to the submission that her Honour adopted a “two options approach” and that such an approach, if adopted, was “erroneous”, this Court made clear in Miller & Harrington, (2008) FLC 93 383, that the “rule in Rice and Asplund” might be applied either “at a preliminary stage” or at another stage of parenting proceedings (see, for example, [72]). That conceptualisation of the “rule” is entirely consistent with what the High Court said in the unreported decision in Lowe –
Lowe & Lowe, an unreported High Court decision by Mason CJ and Dawson and Toohey JJ on 6 April 1990. There, Mason CJ said at paragraph 11:
…It may be that in some cases the judge, in order to evaluate how strong the case is in relation to change of circumstances, needs to do little more than read the affidavits. He may need to have the benefit of cross-examination of some of the witnesses in order to evaluate how strong the case for change of circumstances appears to be. It seems to me that each case must be tailored to its own circumstances and an approach worked out which in the mind of the primary judge is best for that particular case.
Quite clearly the Full Court of the Family Court, recognising the guidance provided by Mason CJ in Lowe & Lowe, noted that a court exercising jurisdiction in relation to matters such as this needs to consider the manner in which it will proceed and tailor the manner in which it proceeds to the case that is before it. Their Honours then went on, at paragraphs 41 through 43, to note as follows:
41.As his Honour’s judgment in that case makes clear, consistent with what Mason CJ said in Lowe, the “rule” can be addressed “as a preliminary matter” which “proves determinative of the application” or applied at “the end of a full hearing”. In either event, the underlying intention is the same and is grounded centrally in the best interests consideration just referred to: the rule’s application recognises the benefit of the finality of litigation but also recognises that considerations acutely relevant to a child’s best interests can chance, including, for example, by reference to the child’s age and level of maturity.
Their Honours, therefore, go on at paragraphs 42 and 43 to say:
42.Crucially, in light of the arguments advanced on behalf of the father, it should be observed that the statements of both Warnick J in SPS and Mason CJ in Lowe, make it clear that while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.
43.If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
It was essential, in my view, that that recitation of the law and even most recent developments of the law, the decision in Poisat only being delivered some two days ago on 21 July 2014, was a necessary consideration in relation to this matter.
The issue here is whether there has been a change of circumstances so significant in all that has been considered, that it is proper and in the best interests of the child to require or to facilitate the rehearing of the case. The mother’s application specifically seeks a redetermination of arrangements with regard to the parenting of X.
The mother details a considerable number of issues in her material and her affidavit, filed in support of the application, is a lengthy one and details considerable matters with regard to what she says have been significant changes since the matter was determined, firstly, and perhaps most significantly, by Federal Magistrate Walker, as she then was, but also circumstances which the mother says have significantly changed and which are relevant to the future parenting of X, since the determination of Judge Altobelli in February 2013.
Counsel appearing for the father indicated to me, and I accept, that the circumstances that the mother says have changed can be broken down to four central themes. They are:
(1)The changes and perhaps more specifically, the improvements in her health and more specifically, her mental health since the determination of this matter.
(2)The changes that have occurred subsequent to the orders in relation to the child’s behaviour and specifically in relation to concerns expressed by the mother with regard to the child’s health.
(3)The changes or deterioration that has arisen in relation to the father’s parenting capacity.
(4)The improvements in the parties’ capacity to communicate with each other.
I was taken, at some length, by counsel for the father to the decision of Federal Magistrate Walker in relation to this matter and specifically to a number of findings by her Honour, in relation to this matter. In particular, I was directed to paragraph 153 of the judgment where it was suggested that there had been a real determination with regard to the mother, not just in respect of issues with regard to mental health but more generally. At paragraph 153, Federal Magistrate Walker, as she then was, said:
The Court finds that the mother, while she undoubtedly loves X very much, and while she has put herself to considerable expense and effort to provide a very well appointed home for him, is less likely than the father to make considered decisions about X. This is an important aspect of parental responsibility.
I was taken then to various other comments and findings made specifically by her Honour in relation to arrangements with regard to parenting. At paragraph 177, her Honour says:
However the Court has found that the mother’s capacity to care for X’s needs including his emotional and intellectual needs, is impacted because of some of her personality characterises –
I assume “characteristics” –
which means that she is less likely than the father to be able to offer stability to X. She has been over reactive to the father and impetuous in many of her actions. She has had difficulty containing her behaviour and what she says. The Court has accepted the assessment of Dr W that the mother has had difficulties in focusing on X’s needs and that her parenting environment has had “destabilising components for X”. The basis of such an assessment has been set out in detail in the judgment.
At paragraph 179, her Honour specifically accepted the opinions, recommendations and most specifically the concerns that were expressed by Dr W and noted as follows:
The Court has accepted the evidence of Dr W that the mother is less likely to be able to provide stability for X than his father.
And finally, at paragraph 180, it was noted that it was, in her Honour’s view, more appropriate and in the child’s best interests that he should live with his father. There, her Honour says:
Dr W’s opinion was that X had probably been a little attention seeking and a little insecure in his father’s home as well as his mother’s home particularly following the birth of Y. His opinion however was that X would adjust to the change in parenting arrangements. The father preferred that X’s time with his mother be in one block period each fortnight. It seems apparent that the recommendations of Dr W took into account that there should not be a long period of time between the occasions when X spent time with his mother. This is an important consideration. The Court proposes to follow his recommendations.
Quite simply, and perhaps needing to be emphasised here, her Honour found a multitude of reasons and bases upon which it was considered by her in the best interests of X that the child live with the father. It was not simply a determination, as was submitted to me by the mother, that the concerns that were expressed in relation to the matter related primarily, if not solely, to issues with regard to the mother’s mental health and that because, as the mother indicates in her material and it is accompanied by a brief letter from her psychiatrist, she is not experiencing anxiety or other psychiatric difficulties, there is a basis upon which the child should be returned to the mother’s care.
It is important that I emphasise that particular aspect of the matter, because it is, with respect, clear that the mother has failed to appreciate or to understand that her Honour’s reasons in relation to this matter and the basis upon which she made her determination, was far more wide-ranging than simply upon a few considerations that had arisen, as a result of the considerations with regard to the mental health of the mother.
In fact, Judge Altobelli in his decision in February 2013 made very similar findings in relation to this matter. At paragraph 7, he says:
7. As I observe to the mother, the Court is playing a gatekeeper role to prevent X from being involved in further unnecessary litigation relating to him. I sense the mother struggled at times to understand the concept of Rice & Asplund, and thus I gave her considerable liberty to say what she wanted done. My other sense is that the mother, even today, continues to struggle with Federal Magistrate Walker’s decision. As I indicated to her, this is not an appeal, and that she had to demonstrate not just change, but significant change.
I concur with his Honour’s sense in this particular matter that came before me as well. The overarching impression that I gained in relation to the mother is that she struggles with the determination of Federal Magistrate Walker that it was ultimately, and for a considerable number of reasons, appropriate for X to live with his father.
The mother goes on, as I have indicated, to detail what she has said have been various changes that have arisen and that they either individually or cumulatively, constitute a significant or substantial change in relation to her circumstances. I am not at all satisfied that that is the case. The mother’s best information in relation to her emotional health is that her medication has been significantly reduced or in fact she no longer takes medication with regard to her previous difficulties. Her doctor has indicated that she does not, at the present time, require such medication.
I, of course, accept that that is the case but the fact that the mother might have seen her circumstances change in relation to her mental health is only but one of the many factors that would be influential in relation to a determination as to parenting and would similarly be only one of many factors which would need to be considered before it could finally be determined that there had been a change of a substantial or significant nature.
I am not satisfied that that particular issue is in any way determinative of this matter and, in any event, am satisfied that it was, of course, only one of the factors that may have been open to consideration by her Honour, when making her original decision in relation to this matter. At no stage or at no point did her Honour suggest, for example, that her decision was based entirely or primarily upon issues with regard to the mother’s mental health and that therefore if she were, to use the vernacular, “well”, that a different determination would be made. It is not open to this court, nor is it reasonable to find, that that would be the basis upon which there has been a significant or substantial change.
Other factors emphasised by the mother related to issues with regard to the child’s health and, as appears clear from the decision made by Federal Magistrate Walker in October of 2011, many of those issues were addressed. In fact, as I emphasised to the mother during her submissions in relation to this matter, much of what she addressed in her affidavit was a recitation of the previous history in relation to the matter and much of it went back to the time when this boy was only a little child and even before any court proceedings were the subject of final determination.
Additionally, there was enormous influence and importance placed by the mother upon what she says were statements made by the child. Less than a year prior to her application being made in relation to this matter, Judge Altobelli specifically turned his mind to concerns that arose with regard to statements made by the child. At paragraph 17 of his judgment, he says:
The concerns she raises about conflict in the father’s household are largely based on what it is that X has alleged to have said.
Quite clearly, His Honour there was referring to the fact that this child, no doubt, is making statements to the mother in terms of what he clearly understands the mother wishes to hear. There is nothing corroborative or determinative that arises from such matters. The evidence is hearsay at the best and my distinct impression in this matter is exactly the same as that which in fact was concluded by Federal Magistrate Walker in 2011. It is that the mother is very quick to find fault with the father and would find the least attractive possible outcome in relation to any statement made by the child.
Of course, Mr W, in his report found that there were similar concerns in relation to the behaviours of the father but what is being dealt with here are issues with regard to the mother and the very significant matter of whether leave should be granted and whether it is in the best interests of this little boy to allow a full redetermination of circumstances in relation to arrangements with regard to his parenting.
Issues of X’s health were also dealt with and her Honour was satisfied at first instance that the father properly could and would deal with such issues.
The mother suggests a multitude of small or, in some instances, she says more significant faults in relation to such behaviours but, again, I am not satisfied that they in any way would reflect poorly upon the father to the extent that it would be a change in circumstances, significant enough to warrant a re-litigation of the entirety of the arrangements with regard to the parenting of this child.
Similarly, there were complaints by the mother about the father and his parenting of the child which also included concerns with regard to what apparently the child is suggested to have reported to the mother as being defamatory statements by the father toward her and toward other members of the mother’s family or household. The evidence is vague and based on hearsay at best. It in no way reaches the level of what could in any way be suggested to be a reflection of what is a substantial or significant change in the circumstances between the parties.
Finally, identified by counsel for the father but certainly arising from material filed by the mother, is the suggestion that the parties are better able to communicate, and that that was one of the concerns expressed by Federal Magistrate Walker in her original decision, which have now substantially changed. If anything, the impression that I gain after the reading of the material in relation to this matter and, of course, after hearing submissions particularly made by the mother in relation to the matter, is to suggest that there is still poor communication and little respect or trust that exist between the parties.
The mother’s position in relation to this matter, seems almost entirely to be based upon concerns that she has with regard to virtually every aspect of the father’s parenting of this child. I am not in any way satisfied that there has been an improvement in the communication with regard to the parenting of X and, in fact, would specifically record here that even if there were, and it would be beneficial if that were the case, it would not be so substantial or significant as to, in any way, warrant a rehearing of the determination in relation to these proceedings.
As is, I hope, obvious from the comments that I have made in relation to this particular matter, I am absolutely satisfied that there is no basis upon which the court could properly find that there has been a substantial or significant change in circumstances that would in any way warrant the enormous upheaval in the lives of both parties but much more significantly this little boy, to facilitate the reopening and reconsideration of the parenting arrangements with regard to the child.
Two other issues also need to be addressed by me. One relates to the mother’s desire to inspect the documentation which has been subpoenaed by her subsequent to the issue of subpoenas in relation to proceedings that were determined before Judge Altobelli. His Honour was specific about his concerns in that regard and, in particular, was concerned about the further inspection and continued issue of subpoena, in relation to this matter.
His Honour, clearly, was of a mind to consider that it was not appropriate that the proceedings be facilitated upon a fishing exercise and that is exactly what would arise in relation to the issue of further subpoena and inquiry, where the mother were looking for nothing other than evidence upon which she could base a further inquiry. I am absolutely satisfied that his Honour’s order in relation to this matter was both well considered and appropriate and I am not at all of the view that it related only to the proceedings before him.
I note additionally that His Honour was asked on behalf of the father to restrain the mother from initiating further proceedings in relation to the parenting of X without the leave of the court. His Honour declined to make the order noting that this was the first application that the mother has made since the orders were made in October of 2011. As I noted, however, less than a year later another application has been brought by the mother in relation to the parenting of the child and, as indicated in the response filed by the father, an order is specifically sought that the mother be restrained from initiating further proceedings.
I am mindful in that respect particularly of the provisions of section 118 of the Family Law Act and of the miscellaneous sections that flow from that. Those sections relate specifically to frivolous or vexatious proceedings and a court may make orders, if it is satisfied that frivolous or vexatious proceedings have been brought and that they should then be dismissed or that such orders as to costs as a court considers appropriate should be issued, in relation to such matters.
I am not satisfied that the mother’s application in relation to this matter is frivolous or vexatious but what I am satisfied is that it, if you like, examples a stance taken on the part of the mother which is to the effect, that she will continue to bring applications in relation to the parenting of the child X, until she achieves what she seeks.
To do so, of course, would specifically give rise to a concern that the father is put to expense, perhaps unnecessarily, but far more significantly, that X becomes embroiled in continued litigation which may or may not have any prospects of success. To that end, I am satisfied therefore that it is in the best interests of this little boy and appropriate that the mother should be restrained from initiating further proceedings, in relation to the parenting of the child, X, without the leave of the court. I am satisfied that that is an order in the best interests of the child and precludes the father from having to deal with an application until a court has first found that it is satisfied that it is appropriate for proceedings to be the subject of further consideration.
What finally flows in relation to this matter is a requirement also to consider the application on the part of the father that the mother pay his costs. The mother, in fact in her submissions to me, also sought an order with regard to the father paying her costs of and incidental to previous proceedings, that had been dealt with and expenses that she had incurred.
Of course, those were matters which could and should properly have been determined by Federal Magistrate Walker if the issue was brought before her. It is not, as I understand it, a matter that her Honour ruled on and, in my view, when one is mindful of order 15 of the orders of 12 October 2011, noting that an order was made with regard to the father paying one half of the cost of the Independent Children's Lawyer, it is clear that her Honour turned her mind to issues of costs generally, in relation to the proceedings.
The mother’s application therefore with regard to some form of retrospective determination, be it by way of appeal by another means or otherwise, is without merit and I, of course, intend to dismiss any application with regard to orders with regard to the payment of costs. Insofar as the father’s costs in relation to these proceedings are concerned, however, other considerations must be looked at. I am mindful in particular of the provisions of section 117 of the Family Law Act and specifically of the fact that pursuant to subsection (1), parties should bear their own costs of proceedings but, like life, for every rule there is an exception and subsection (2) provides the court, if it is satisfied or of the opinion that there are circumstances to justify it, may make an order in relation to costs.
In this instance, the father says that there are clearly bases upon which the court should exercise a discretion in relation to the costs. It is clear that the mother has been wholly unsuccessful. Consideration must be given to the various matters that are detailed in section 117(2A) and the issue of whether one party to the proceedings has been successful or unsuccessful is a consideration to be looked at, but it must be looked at in conjunction with other matters, though not all must be found to be significant before the exercise of discretion is to be determined.
Quite simply here, there have been proceedings which have been dealt with over six or so days involving the determination in relation to the parenting of this child. Thereafter, within a period of a little over a year, a further application has been made and dismissed and then within less than a year of that determination, another application has been made and, following my determination and decision here, has been unsuccessful. The father has been put to costs and expense in relation to this matter.
The fact that the mother’s circumstances are stretched, as indicated in her material, is only but one of the considerations and it would be an injustice of the highest order if a party’s impecuniosity was to be an absolute determinant of whether costs orders should or should not be made, in relation to proceedings. In this matter, it is clear that the father has been required to attend and to incur significant expense in opposing the unsuccessful application brought by the mother.
I am satisfied that it is proper that an order for costs should be made in relation to this matter. To that end, I intend specifically then to order that the mother is to pay the father’s costs of and incidental to these proceedings as agreed between the parties and, failing agreement, will direct that within 28 days of there being an indication that agreement cannot be reached as to costs, that submissions as to the quantum of costs on the part of the father be filed and served upon the mother and that the mother have 14 days thereafter to respond in relation to such application and that the matter be referred then to me for final determination.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 1 September 2014
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